Mobile phone usage

The Road Vehicles (Construction and Use) (Amendment)(No 4) Regulations 2003 came into force on 1 December 2003, banning drivers from using mobile phones while on the road. Employers can also be held liable for offences arising from work-related calls.

What is this law designed to do?

The rules aim to protect employees and their employers from possible prosecution for using a mobile phone while driving a motor vehicle. The new law also aims to inform and educate staff about the responsible use of mobile phones in vehicles.

This policy applies to all company car/van/lorry drivers as well as employees who use their own private vehicles for work purposes. It should be incorporated into the terms and conditions of employment of all relevant employees and employers should keep a record of their employees understanding and accepting the policy.

What do the regulations mean?

The regulations make it illegal to use a hand-held phone or similar device when driving. This applies to the drivers of all motor vehicles on the road, including cars, motorcycles, goods vehicles, buses, coaches and taxis. It also applies to anyone supervising a learner driver, while the learner driver is driving.

The regulations also apply to anyone who causes or permits any other person to use a hand-held mobile phone while driving. So employers would be liable if they required their employees to use a hand-held phone while driving and would also be liable if they failed to forbid employees to use such phones on company business.

What is a hand-held device?

A hand-held device is something that ‘is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function’. Examples of interactive communication functions are sending and receiving spoken or written messages, sending or receiving still or moving images and providing access to the internet.

The offence applies if a phone has to be ‘held’ while making or receiving a call. ‘Cradling’ a phone by wedging the phone between the ear and shoulder – or anywhere else – constitutes ‘holding’ a phone.

The use of a mobile phone or similar device for texting/internet access/video phones while driving is also prohibited if the phone (or other device) has to be held in order to operate it.

Are there any exemptions to the rules?

The prohibition applies when driving. Driving includes times when stopped at traffic lights or during other hold-ups that may occur during a typical journey when a vehicle can be expected to move off after a short while.

There is an exemption to the prohibition on calls while driving, for calls to 999 in genuine emergencies where it is unsafe or impractical to stop.

Provided a phone can be operated without holding it, hands-free equipment is not prohibited by the regulations. In addition, pushing buttons on a phone while it is in a cradle or on the steering wheel or handlebars of a motorbike for example is not covered by the offence, provided the individual does not hold the phone.

The use of hands-free phones is still considered distracting and individuals risk prosecution for failing to have proper control of a vehicle under Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 if they use a hands-free phone when driving. If there is an incident and the driver is using any phone (hand-held or hands-free) or similar device, there is a risk of prosecution for careless or dangerous driving.

What do employers need to do?

As well as making it illegal for drivers to use mobile phones on the move, it the Regulations also prohibit employers from requiring or encouraging employees to make or receive hand-held calls while driving.

Driving on company business constitutes ‘work’. Employers are under a duty to provide a safe working environment under the Health and Safety At Work Act 1974 and are also required to protect their employees’ safety under the common law duty of care.

Therefore, employers should ensure that staff understand the following:

  • Employees are under no obligation to make or receive telephone calls while driving
  • Hand-held mobile phones should never be used while driving
  • Employees should only use professionally fitted hands-free kits with phone cradles and even then highlight that there is a risk of prosecution for careless or dangerous driving when using hands free, if it can be shown that the driver was distracted and not in proper control of the vehicle.

Employers may want to consider the following best practice guidelines:

  • Mobile phones should be switched to voicemail when the user is driving
  • Emergency calls only should be made / received when on the move
  • Employees should be encouraged to only make or receive calls –- even with a hands-free kit – when they are safely parked away from the road.

Sandra Wallace is a partner and head of equality and diversity at DLA Piper

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